CITY OF N.Y. v. U.S. DEPT. OF COMMERCE

June 7, 1990

THE CITY OF NEW YORK, THE STATE OF NEW YORK, THE PEOPLE OF THE STATE OF CALIFORNIA EX REL. JOHN K. VAN DE KAMP, ATTORNEY GENERAL, THE CITY OF LOS ANGELES, THE CITY OF CHICAGO, DADE COUNTY, FLORIDA, THE U.S. CONFERENCE OF MAYORS, THE NATIONAL LEAGUE OF CITIES, THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS, THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, MARCELLA MAXWELL, DONALD H. ELLIOTT, JOHN MACK, OLGA MORALES, TIMOTHY W. WRIGHT III, RAYMOND G. ROMERO, ANTONIO GONZALES, AND ATHALIE RANGE, PLAINTIFFS,v.UNITED STATES DEPARTMENT OF COMMERCE, ROBERT A. MOSBACHER, AS SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE, MICHAEL R. DARBY, AS UNDER SECRETARY FOR ECONOMIC AFFAIRS OF THE UNITED STATES DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, BARBARA EVERITT BRYANT, AS DIRECTOR OF THE BUREAU OF THE CENSUS, GEORGE BUSH, AS PRESIDENT OF THE UNITED STATES, AND DONALD K. ANDERSON, AS CLERK OF THE UNITED STATES HOUSE OF REPRESENTATIVES, DEFENDANTS.

The opinion of the court was delivered by: McLAUGHLIN, District Judge.

MEMORANDUM AND ORDER

Census-taking has never been easy, and has rarely received
favorable press. King David learned this the hard way. In First
Samuel, the King directed his Census Bureau, one Joab, to "go
through all the tribes of Israel From Dan to Bersabee, and
number ye the people that I may know the number of them." When
Joab had reluctantly counted as far as 800,000, David realized
that, in some eyes, his task might be regarded as hubris on the
scale of the Tower of Babel. He repented, lamenting: "I have
sinned very much in what I have done; But I pray thee O Lord,
to take away the iniquity of thy servant because I have done
exceedingly foolishly." The Lord turned a deaf ear for he sent
David a pestilence and 70,000 died.

Caesar Augustus fared little better with David's descendant,
Joseph, who, it will be recalled, had to travel with Mary to
Nazareth for a census count, only to find there was no room for
his tiny family in the inn. Christianity thus was founded in a
stable — thanks to the census — and, according to Gibbon's
Decline and Fall of the Roman Empire, it was Christianity that
toppled the empire of the Caesars.

For whatever reasons it goes against the American grain to
submit to counting. In the 1980 count Census Bureau officials
concede that they missed at least three million people.
Statisticians and demographers claim this is a modest
assessment. In any event, no one claims that the count is
precise. Indeed, shots rang out as census takers recently
approached one building in Brooklyn, thereby aborting further
attempts to count that building's occupants.

Various statistical and sampling techniques have been
employed, at least to some extent, by the Bureau of the Census
to arrive at as accurate a figure as humanly possible, although
the Bureau largely adheres to what it refers to as an "actual
enumeration." Therein lies the rub, and this lawsuit.
Plaintiffs claim that the actual enumeration the Bureau has
used in the past and originally intended to use in the 1990
census is skewed to underestimate large blocks of minorities,
with most of the undercounting occurring in the large urban
areas. If this turns out to be true, the inevitable consequence
will be under-representation in the Congress, and
under-allocation of government revenues, grants, programs and
the like. Plaintiffs argue that the 1990 census should be
statistically adjusted to compensate for this "differential
undercount" of minorities, if such an adjustment results in the
most accurate census practicable.

FACTS

Plaintiffs began this suit in November 1988, seeking to
enjoin the conduct of the 1990 census. Extensive negotiations
were conducted in the summer of 1989, culminating on July 17,
1989 with an eleventh-hour stipulation (the "Stipulation") of
the parties. The short-term effect of that Stipulation was to
moot plaintiffs' motion for a preliminary injunction, halting
the immediate course of the 1990 decennial census; the
long-term effect of the Stipulation remains to be seen.

Plaintiffs now return to the Court, alleging defendants have
violated that Order and Stipulation. Plaintiffs seek two-fold
relief. First, plaintiffs ask for a declaratory judgment,
declaring that a statistical adjustment of the federal census
does not violate the Constitution or 13 U.S.C. § 195.*fn2
Second, plaintiffs seek a supplemental order from the Court:
(1) invalidating the "guidelines" promulgated under the
Stipulation for determining whether a practicable statistical
correction would increase census accuracy; (2) ordering
defendants to adjust the census, unless they demonstrate to the
Court that the original enumeration is more accurate or that
some other compelling reason prevents a statistical adjustment;
and (3) directing defendants to fulfill their obligations to
the Special Advisory Panel established under the terms of the
Stipulation.

Defendants first argue that plaintiffs' claims for a
declaratory judgment and for a supplemental order are not ripe
for review. Essentially, defendants argue that, although the
"guidelines" promulgated pursuant to the Stipulation are final,
the Secretary of Commerce (the "Secretary") has not yet applied
them. Thus, the Secretary may yet act under the guidelines to
adjust the census in a manner that accords with plaintiffs'
requests, thereby obviating the need for further relief.
Defendants also contend that, since the Secretary has yet to
decide whether an adjustment is constitutional, there is no
decision ready for review.

Additionally, even if plaintiffs' claims were ripe, according
to defendants, the decision whether to adjust is a political
question. If so, plaintiffs' claims should be dismissed as
nonjusticiable. Finally, if judicial review is proper and some
form of relief is available at this time, defendants maintain
that the specific relief requested is excessive and wholly
unwarranted.

The Stipulation

Under the Stipulation, the Secretary retains all authority
and decision-making power, "including without limitation the
decision whether or not to adjust the 1990 Decennial Census."
Stip. at 1. Defendants forthrightly concede in the Stipulation
that a post-enumeration survey ("PES") and other adjustment
operations defendants deem necessary will be conducted for the
express purpose of achieving the most accurate count
practicable.

To insure that this self-imposed mandate will be carried out
properly, the Stipulation establishes two linchpin provisions.
First, "[d]efendants agree that the Department will promptly
develop and adopt guidelines articulating what defendants
believe are the relevant technical and nontechnical statistical
and policy grounds for decision on whether to adjust the 1990
Decennial Census population counts." Stip. at 3. In addition,

Defendants shall establish . . . an independent
Special Advisory Panel (the "Panel") to advise the
defendants on all matters relevant to the
implementation of this Stipulation and, in
particular, and without limitation, the guidelines
. . ., the application and achievement of the
guidelines, the expedition with which defendants
are proceeding toward decision on adjustment, and
plans and schedules for the implementation of the
Census and the PES in a manner that will result in
the most accurate final census data at the
earliest practicable time.

Stip. at 4-5.

Plaintiffs believe that defendants have failed to fulfill
their explicit obligations under each provision.

DISCUSSION

I. POLITICAL QUESTION

Pursuant to the Stipulation, "plaintiffs reserve the right to
challenge any of the guidelines . . . adopted, omitted,
implemented, or announced in connection with or arising out of
this Stipulation." Stip. at 7. Despite this language,
defendants maintain that a challenge to the guidelines presents
a nonjusticiable political question.*fn3

Some actions of the Executive and some interaction between
the executive and legislative branches are, in an Article III
sense, inappropriate for judicial intrusion. Holtzman v.
Schlesinger, 484 F.2d 1307, 1309 (2d Cir.), cert. denied,
416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974). As a function
of separation of powers, cases which raise a political question
are nonjusticiable and, by constitutional mandate, preclude
judicial intervention. Baker v. Carr, 369 U.S. 186, 210, 82
S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). While sensitive to such
limitations, this Court is satisfied that a challenge to the
final guidelines, even as they relate to the Secretary's yet
unmade decision on a census adjustment, does not present a
political question.

The identical argument against justiciability arose in
litigation, also brought by the City and State of New York,
concerning adjustment of the 1980 census. Carey v. Klutznick,
508 F. Supp. 404 (S.D.N.Y. 1980). The district court, rejecting
defendants' suggestion of a political question, found:

While Carey v. Klutznick involves a challenge to
the census, and not precisely a challenge to
congressional redistricting [as in Baker v. Carr,
369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)],
the former provides the foundation for
apportionment and redistricting and, therefore, the
precedents sustaining challenges to congressional
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.